F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        October 26, 2005
                                    TENTH CIRCUIT
                                                                          Clerk of Court

 BRYAN MARK BIERIG,

          Petitioner - Appellant,
                                                        No. 05-6137
 v.                                               (D.C. No. CIV-04-925-R)
                                                        (W.D. Okla.)
 MIKE MULLINS,

          Respondent - Appellee.


                               ORDER
                DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, O’BRIEN, and, TYMKOVICH, Circuit Judges.


      Brian Mark Bierig, an inmate appearing pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his writ of habeas

corpus, 28 U.S.C. §2254. In order to merit a COA, Mr. Bierig must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).

To make such a showing, Mr. Bierig must demonstrate that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a



      *
        After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. The cause is therefore ordered
submitted without oral argument.
constitutional right.” Slack v. McDaniel, 

, 484-484 (2000); see also

Miller-El v. Cockrell, 

, 327 (2003). Where the petition was denied

on procedural grounds, he must additionally show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

.

      Mr. Bierig was convicted after a jury trial in state district court of (1)

manufacturing methamphetamine (Count I), (2) possession of marijuana (Count

II), (3) unlawful possession of drug paraphernalia (Count III) and (4) possession

of a firearm after conviction or during probation (Count IV). He was sentenced to

forty years and a $50,000 fine on Count I, one year on Count II, one year and a

$1,000 fine on Count III, and five years on Count IV. Counts II and III are

concurrent with Count I, and Count IV is consecutive to Count I. The Oklahoma

Court of Criminal Appeals (OCCA) affirmed the judgment and sentence on direct

appeal. R. Doc. 12, Ex. 4. Mr. Bierig sought post-conviction relief which the

state district court denied. R. Doc. 12, Exs. 6 & 8. The OCCA affirmed that

denial.

      In his federal habeas petition, Mr. Bierig raised four grounds for relief, that

(1) trial counsel rendered ineffective assistance by failing to challenge the




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sufficiency of the evidence related to manufacturing of methamphetamine, 2 (2)

the sentence of possession of a firearm is unsupported by sufficient evidence, (3)

an unlawful search and seizure violated his Fourth Amendment rights, and (4) his

sentence is excessive and constitutes a miscarriage of justice because the gun did

not belong to him. See R. Doc. 1 at 9.

      The magistrate judge determined that the first ground (ineffective

assistance of trial counsel) was procedurally barred by an independent and

adequate state ground. The OCCA rejected this claim for not having been raised

on direct appeal. That procedural bar was adequate because Mr. Bierig was

represented by different counsel on direct appeal and the claim could have been

resolved on the trial record. See English v. Cody, 

, 1263-64 (10th

Cir. 1998); Brecheen v. Reynolds, 

, 1363-64 (10th Cir. 1994). The

magistrate judge determined that the procedural bar could not be excused because

Mr. Bierig had shown neither cause for the failure to raise the claim, nor a

fundamental miscarriage of justice. See Coleman v. Thompson, 

,

750 (1991). The second ground (sufficiency of the evidence on the possession of

a firearm count), also raised in Mr. Bierig’s direct appeal and rejected by the


      2
        It should be noted that the sufficiency of the evidence concerning the
manufacture of methamphetamine was raised on direct appeal by appellate
counsel and the OCCA rejected this claim on the merits. R. Doc. 12, Ex. 4 at 3.
Notwithstanding, Mr. Bierig is complaining about trial counsel’s performance
with respect to this issue.

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OCCA, was rejected on AEDPA deference grounds. 28 U.S.C. § 2254(d)(1) &

(2). The third ground (unlawful search and seizure), not raised on direct appeal

or in post-conviction proceedings, was unexhausted, but would be deemed

procedurally barred; hence, the claim was procedurally defaulted, and Mr. Bierig

had not shown cause and prejudice, or a fundamental miscarriage of justice.

Additionally, this claim was based upon an alleged Fourth Amendment violation,

and was not cognizable in habeas because nothing suggests that Mr. Bierig was

denied an opportunity to litigate that claim in the state trial court. Stone v.

Powell, 

, 494 (1976). Finally, the magistrate judge rejected the

fourth ground (an excessive sentence given the lack of evidence of gun

possession), which Mr. Bierig raised as part of a broader excessive sentence claim

on direct appeal, R. Doc. 12, Ex. 2 at 37, as an extension of the second claim, and

possibly the third claim.

        Mr. Bierig objected to the report and recommendation, and asserted

ineffective assistance of appellate counsel as cause for the grounds that were

procedurally defaulted and not raised on state direct appeal (grounds 1 and 3).

The district court found this theory was waived for failing to have raised it earlier

in the federal proceedings. Moreover, any claim of ineffective assistance of

appellate counsel would be procedurally barred in its own right and could not

constitute cause, absent a showing of cause and prejudice, or a fundamental


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miscarriage of justice. Edwards v. Carpenter, 

, 453 (2000). The

district court overruled Mr. Bierig’s remaining objections and adopted the report

and recommendation of the magistrate judge. Mr. Bierig’s claims on appeal

should be limited to those contained in his objection to the report and

recommendation because he was informed of the time period for objecting and

the consequences of failing to object, and no circumstances suggest that the

interests-of-justice exception to our waiver rule should be invoked. See

Wirsching v. Colorado, 

, 1197 (10th Cir. 2004).

      Mr. Bierig seeks now a COA based on the grounds he raised below and

several grounds not properly raised in his habeas petition (let alone raised in his

objection to the magistrate judge’s report and recommendation) including (1)

prosecutorial misconduct, (2) an excessive sentence claim as presented on direct

appeal rather than the narrower version contained in his habeas petition, (3)

ineffective assistance of trial counsel based upon a failure to object to

prosecutorial misconduct, (4) improper testimony by a law enforcement witness in

violation of Brady, (5) insufficient evidence on the manufacture of

methamphetamine count, and (6) delay in receiving trial transcripts. He also

faults the state appellate court for not considering all of his grounds for post-

conviction relief. Finally, he contends that the magistrate judge improperly relied

upon cases decided after his conviction.


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       The district court’s resolution of Mr. Bierig’s claims that were presented in

his habeas petition is not debatable. The magistrate judge fairly construed the

habeas petition, and claims not fairly raised therein are deemed waived. See

Jones v. Gibson, 

, 958 (10th Cir. 2000); Rhine v. Boone, 

, 1154 (10th Cir. 1999). The magistrate judge’s use of cases arising after

Mr. Bierig’s conviction does not create a debatable issue. The law that the

magistrate judge relied on was well-settled at the time of Mr. Bierig’s conviction.

      Accordingly, we GRANT Mr. Bierig leave to proceed IFP, DENY a COA

and DISMISS the appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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